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R v Batiala [2005] TVHC 7; Criminal Case 1 of 2005 (17 May 2005)

IN THE SENIOR MAGISTRATE’S COURT
AT FUNAFUTI
Criminal Jurisdiction

Case No: 1/05

Between:

R

v

Naniseni Batiala
First Defendant

Pato Selulo
Second Defendant

BEFORE THE CHIEF JUSTICE

Albert Seluka for the prosecution
Stephen Barlow for first accused
Malii Elisala for second accused

Hearing: 16 May 2005
Sentence: 17 May 2005

Sentence

Both accused have pleaded guilty to a joint charge of arson. The prosecution facts are that they and another person who has yet to be apprehended used to drink sour toddy together on Nanumea. They had reason to believe that some was being stolen by some others.

On Sunday, 16 February 2003, in the late afternoon they decided to find the men they suspected in order, it would appear, to assault them. As they approached, the others saw them and fled. One was attacked but the attack was stopped by Tuku Manalea, the owner of the house which was later burned down. About an hour later the accused and their companion returned and found the others were in Manalea’s house. Manalea himself had left the house and the other men again fled at the approach of the accused.

The prosecution case is that the accused chased the others but, having failed to catch them, they went into the house and damaged the contents. They then collected palm fronds and used them to set fire to the house. It was burned to the ground together with an outhouse. The accused then went to drink more sour toddy at the home of a friend.

Subsequently, they both made statements to the police in which they admitted the offence.

At this Court, counsel for the first accused stated that the first his client knew of the plan to burn the house was when the second accused gave him fronds to place by the house. He admitted he took them and set fire to the outhouse but denies he was involved in the burning of the dwelling house.

Counsel for the second accused advised the court that his client’s case was that he chased the other man into the bush and, when he returned, the fire was already well established. He then added fronds to the fire because he was angry.

I accept the accounts put forward by counsel on behalf of each accused but, even on those accounts, it is clear this was a joint attack on the house. I do not consider there is any reason to differentiate between these two accused in relation to their individual participation.

The first accused is only 19 years old and was 16 at the time of this offence. He was brought up in Solomon Islands and came to Tuvalu for the first time about three years ago. His parents are still in Honiara and he is looking after his family here. He has worked on Funafuti for the last two years but, having once returned to Nanumea for the PI for this case, he stayed because of uncertainty over the result of this trial.

He clearly cannot pay for the damage he caused – a figure in excess $3,000 - and has not asked his father, who is in paid employment, to help. He has only one minor previous conviction.

Mr Barlow points out that he was much younger than his companions and as a result was unlikely to feel he could withdraw from the group once the plan was started.

The second accused is considerably older and was 36 years old at the time of the offence. He is married with children and his wife is pregnant with another. Although he is not employed, he earns a small income from selling coconut oil and pandanus leaves. He has a considerable number of previous convictions since 1984; all for minor offences of an anti-social nature. Since 1997 however, he has only had two, one in 2002 and the other subsequent to this case.

Both accused say they went to the police voluntarily the following day and admitted their part. Both say they have apologised to the victim. Both have pleaded guilty and neither can pay for the loss caused to Manalea.

Arson is an extremely serious offence. The maximum penalty of life imprisonment reflects that. Mr Barlow has cited a number of cases from Kiribati where it appears it is a common offence. In all those cases, sentences of no more than two years imprisonment were imposed and in all cases they were suspended.

I do not know of the conditions of Kiribati. I do know that arson is not common in Tuvalu and it is imperative that the Court shows clearly that it is regarded here as very serious. There can be few more dreadful offences than to destroy another person's home and all its contents. Unless there are exceptional circumstances, I do not consider that any case of arson can be properly punished by anything but a sentence of immediate imprisonment.

This case is aggravated by the fact it was done for no more reason than anger at the house owner for stopping them from assaulting another person, that they were drunk at the time and that they caused total destruction of the house. The penalty is mitigated by the fact that the accused admitted their part to the police and maintained that position by pleading guilty in court albeit on a basis which resiles to some extent from the original admissions. It is clear that there was no one in the house at the time although the statement of the first accused to the police says they waited to see if anyone ran out. Had I felt the offence was committed knowing or suspecting there were people in the house the penalty would have been very considerably higher.

I also accept that imprisonment will cause hardship to both men’s families. No court can ignore that fact but it is not a factor which can or should assist the accused at this stage. The fact they both knew they had families who relied on them might be expected to have discouraged them from drinking in the manner in which they did and then behaving as they did.

I accept, as Mr Barlow has stated, that imprisonment is a penalty of last resort and that a court should always try to use any alternative penalty before it resorts to imprisonment especially for a person who has not been to prison before. I agree but there are some cases which are so serious and which can cause so much harm and distress to the victims that imprisonment must almost invariably be the penalty. Arson is such an offence.

Mr Barlow also asks the court to bear in mind that the first accused was very young at the time of the offence. Although the law of Tuvalu does not contain special provisions for the punishment of children, international convention requires the court to sentence children differently from older accused. He suggests that the proper penalty for this offence might be a suspended sentence of imprisonment and therefore, in the case of a child, a bond would be appropriate. I cannot agree. I do allow for the age of the first accused. I accept that he must, because of his youth, have been lead to some extent by his older companions and I also accept that the court must bear in mind the effect of imprisonment on such a young man especially when he is effectively of good character.

The second accused cannot rely on that factor but I do note the minor nature of his previous convictions and the clear improvement in the late 1990s.

In all the circumstances, I sentence the second accused to 3 years imprisonment. Because of his youth at the time but not because I consider him any the less involved otherwise, I sentence the first accused to 18 months imprisonment. I do not consider suspension of the sentence is a proper order in any case of this nature.

Dated: 17th day of May 2005

CHIEF JUSTICE